Chandler v Hiscox Dedicated Corporate Member Ltd
| Jurisdiction | Bahamas |
| Judge | Madam Justice Carla D. Card-Stubbs |
| Judgment Date | 05 March 2024 |
| Docket Number | Claim No. 01468 of 2022 |
| Court | Supreme Court (Bahamas) |
The Honorable Madam Justice Carla D. Card-Stubbs
Claim No. 01468 of 2022
IN THE SUPREME COURT
Common Law and Equity Division
Court's Jurisdiction to order determine order of trial of issues and Preliminary issues — Factors — Part 26.1(2) (d) & (e) of the Supreme Court Civil Procedure Rules 2022 (as amended) (“CPR”)
Whether Court has jurisdiction to give leave to file a rejoinder — Definition of statement of case — Part 2 CPR
Ryan Brown of Counsel for the Claimant
Kevin A.C. Moree and Andrew Smith of Counsel for the First & Second Defendant
This ruling concerns applications as to whether certain issues, and if so, what issues ought to be determined as preliminary issues prior to trial as well as an application by the Defendant to strike out the Claimant's Reply.
The parties made written representations pursuant Part 26, Rule 26.2(n) CPR which provides that a Court may “instead of holding an oral hearing deal with a matter on written representations submitted by the parties”.
For the reasons set out below, this Court finds and orders several issues to be tried and determined as preliminary issues. The Court grants leave to the Defendants to amend their Defence. The CPR does not make provision for the filing of a pleading or statement of case known as a rejoinder.
The Claimant filed its action against the First and Second Respondents on October 19, 2022 by way of a Specially Indorsed Writ of Summons. The First and Second Respondents entered an Appearance and subsequently filed a Defence on November 24, 2022. Shortly thereafter, the Defendants filed a Summons on December 5, 2022 for the determination of a preliminary issue. That application is supported by the Affidavit of Alexandria K. Russell filed June 30, 2023.
On December 9, 2022, the Claimant filed a Reply and then on January 5, 2023 filed a summons seeking the determination of certain questions as preliminary issues before trial. That application is supported by the Affidavit of Delevia Rolle filed July 21, 2023.
On December 29, 2022, the Claimants filed a Notice of Referral to Case Management. On June 23, 2023, the Defendants filed a Notice of Application to, inter alia, strike out the Reply or, in the alternative, grant the Defendant leave to file a rejoinder. That application is supported by the Affidavit of Alexandria K. Russell.
I note for the purposes of this ruling that consideration of the Defendant's application to remove the First Defendant is stayed pending the determination of the preliminary issues.
The Claimant's case on his pleading is that he had an insurance policy with the Defendants, the subject of which was his dwelling located in Great Guana, Abaco. The allegation is that the policy was in effect at the time that the Claimant suffered a loss, which loss the Claimant says is covered by the insurance policy. The Claimant's case is that fire and/or explosion destroyed the insured dwelling (pleaded at paragraphs 19 and 22 of the Statement of Claim). The Defendants denied the claim under the pleaded policy. The Claimant claims damages for loss suffered as a result of the Defendant's “negligent performance and/or breach of the Defendants' obligations” under the policy.
The Defendants admit underwriting the pleaded homeowner's property policy but deny liability. They plead that the insurance claim made by the Claimant “does not fall within the scope of the policy” (pleaded at paragraph 12 of the Defence). The Defendants plead that the Claimant's “premises was destroyed due to the action of wind during Hurricane Dorian” (pleaded at paragraphs 6 and 11 of the Defence).
The parties are therefore joined on the issue of the cause of any loss.
The Defendants also pleaded a clause under the policy that they say would bar the Claimant from commencing the action (pleaded at paragraphs 13 and 14 of the Defence). I will refer to same as “Clause G”.
By virtue of a Reply, the Claimant made several allegations of fact in relation to Clause G. The apparent purpose of the allegations there set out is the Claimant's attempt to show why he ought not to be barred from bringing the action. The Reply also goes on to invoke pieces of legislation that the Claimant pleads would render Clause G ineffective in law.
The parties separately posited issues for determination prior to trial.
The parties make their application pursuant to the Civil Procedure Rules 2022 (as amended) (“CPR”). The Court's power to determine the order in which issues should be tried, and therefore what to treat as a preliminary issue is found in Part 26. Part 26.1(2)(d) and (e) provide:
Court's general powers of management.
(1) The list of powers in this rule is in addition to any powers given to the Court by any other rule, practice directions or any enactment.
(2) Except where these rules provide otherwise, the Court may —
(a) …
(b) …
(c) …
(d) decide the order in which issues are to be tried;
(e) direct a separate trial of any issue;
(f) …
(g) …
(h) …
(i) dismiss or give judgment on a claim after a decision on a preliminary issue;
The purpose of the Part 26 powers is in keeping with the Court's mandate to actively manage cases and to further the overriding objective of enabling the court to deal with cases justly. In determining whether to try issues separately, a court will have regard to the overriding objective. This may include trying preliminary issues to save time and expense.
There are several factors that a court ought to bear in mind in making the determination. Counsel for the Claimant relied on the case of The Ontario Securities Commission v. Pushka and another, [2018] 1 BHS J. No. 94, which I find to be an accurate statement of the law in this jurisdiction.
In The Ontario Securities Commission v. Pushka and another, [2018] 1 BHS J. No. 94, Winder, J, as he then was, opined on the factors that a court must take into account in making the determination. In that case, Winder, J considered the former rules under the Rules of the Supreme Court (R.S.C. 1978, as amended). However, Part 26.1(c) and (d) of the CPR is a replica of the previous Rules of the Supreme Court (R.S.C. 1978, as amended) (‘RSC’) Order 31(A), Rules 18(2)(e) and (f), which provided, “Except where these Rules provide otherwise, the Court may (e) decide the order in which issues are to be tried and (f) direct a separate trial of any issue…” Therefore, on this point, the case of Ontario Securities Commission v. Pushka and another is highly instructive and remains good law.
At paragraphs 7 – 8, the learned judge said:
7 “Additionally, Order 31A of the Rules of the Supreme Court Order 31A imposes upon the court the duty to “deal with cases actively by managing cases, which may include … (b) identifying the issues in the case at an early stage … [and] (d) deciding the order in which issues are to be resolved”.
8 Hepburn J. in the Supreme Court case of Tyrone Morris One Hundred and Sixty-One Others and Paradise Enterprises Ltd 2014/COM/gen/00471 relying on the decision in Steel v. Steele (2001) CP Rep 106 enumerated the considerations to be taken into account by a court in determining not to exercise its dis- cretion to order a trial of preliminary issue(s). These were:
(i) “The first question the court should ask itself is whether determination of the preliminary issue would dispose of the whole case or at least one aspect of the whole case.”
(ii) “The second question that I think the court should ask itself is whether determination of the is- sue would reduce the time involved in pre-trial preparation;
(iii) “Thirdly, if, as here, the preliminary issue is an issue of law, the court should ask itself how much effort, if any, will be involved identifying the relevant facts for the purpose of the prelimi- nary issue. The greater the effort, self-evidently the more questionable the value of ordering a preliminary issue. (…) The cost and effort in agreeing such a document must to my highly questionable, particularly if there is bound to be a trial relating to a great majority of the issues of law and fact whichever way the preliminary issues is decided.”
(iv) “Fourthly, if the preliminary issue is an issue of law, to what extent is it to be determined on agreed facts? The more the facts are in dispute, the greater the risk that the law cannot be safely determined until the disputes of fact have been resolved. Indeed, the determination of a preliminary issue, if there are serious disputes of fact, will run a serious risk of being either un- safe or useless. Unsafe because it may be determined on facts which turn out to be incorrect, and this could even risk unfairly prejudicing one of the parties; useless because, having been determined on facts which turn out to be wrong, it would be of no value.”
(v) “Fifthly, where the facts are not agreed, the court should ask itself to what extent that impinges on the value of a preliminary issue.”(…) “The characterization of the claim, if there is one, may depend on detailed assessment of the evidence which will have to be considered when deter- mining issues of fact. That can only be achieved at trial. It could be that, at the hearing, after considering the facts, the trial judge might take a view as to the characterization of the claim- ant's cause of action which differs from the view taken by the court hearing the preliminary is- sue.”(…) “It may be that it would not be open to t he claimant to raise the argument at trial, be- cause it has not been pleaded, but it seems to me that...
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